BEFORE THE IOWA WORKERS’ COMPENSATION …



before the iowa workers’ compensation commissioner

______________________________________________________________________

:

CHRISTOPHER POULA, :

:

Claimant, :

:

vs. :

: File No. 5025312

MIRON CONSTRUCTION, :

: A P P E A L

Employer, :

: D E C I S I O N

and :

:

ZURICH NORTH AMERICA, :

:

Insurance Carrier, :

Defendants. : Head Note No.: 1803

______________________________________________________________________

STATEMENT OF THE CASE

This is an appeal by the claimant from an arbitration decision filed September 8, 2009. The undersigned has been delegated the authority to issue the final agency decision in this case.

ISSUES

The following issue is raised on appeal by claimant:

Did the Deputy Commissioner err in her credibility assessment of the claimant and in denying claimant benefits for cumulative trauma, chronic pain, the inability to work, and mental sequela?

FINDINGS OF FACT

The findings of fact made by the deputy in the arbitration decision are adopted in this appeal decision as modified and set out below:

Claimant is 43 years old. He is approximately six foot four inches tall and weighs around 320 pounds. (Transcript, page 12) Claimant stated in his hearing testimony that prior to his injury his weight was usually around 250 pounds. (Tr., p. 13) He graduated from high school in 1984 and received some education, about two and a half years, at the University of Iowa with a focus on engineering. (Tr., pp. 13-14) However, he was unable to complete his degree due to two back surgeries in 1985 and 1988. (Tr., pp. 14-15) While physically incapacitated, claimant spent some time working for his father’s law firm as a paralegal, answering phones, making appointments and doing some computer programming. (Tr., p. 66) Claimant also did some coursework through Iowa Vocational Rehabilitation Services in 1989 and 1990 at Kirkwood Community College to learn electrical engineering. (Tr., p. 66)

Claimant’s low back injuries in 1985 resulted in surgeries in 1985 and 1988, related to L4–5 and L5–S1 herniated discs. (Exhibit I, pages 114-115) Claimant was left with residual chronic low back pain. On December 11, 1992, William R. Pontarelli, M.D., of the Steindler Orthopedic Clinic, opined that claimant had minimal lifting and carrying capacity and, therefore, should at maximum only lift 25 pounds occasionally. Additionally the doctor opined that claimant would need to lie down after standing, walking, or sitting for two hours; should do no stooping, climbing, kneeling, or crawling; and was to travel no more than ten miles by car. That doctor further stated:

Chris’ problem is that he really needs to lay down after two hours of just being up walking around and he has to do that frequently, at least three times a day to control his pain. With this kind of limitation I just don't see how he can find gainful employment.

(Ex. I, p. 123)

At hearing and to a variety of his medical providers, claimant acknowledged having played sports, including basketball, in high school. He adamantly denies having played football.

Despite his low back problems and the rather severe restrictions above, claimant became a union carpenter while also having his own construction business, working in that trade for several years. He stated that prior to October 30, 2007 he often worked 90 hour weeks, although claimant’s tax returns do not necessarily reflect income corresponding to those hours. However, in addition to his union hall hours, claimant also had self-employment hours and income that may or may not be reflected on his tax returns.

Claimant’s work through the union hall resulted in him working for various employers over the 24 years he worked in construction prior to his work injury, including defendant employer on occasion. After leaving work for another contractor, claimant once again started work with Miron on Tuesday, October 23, 2007. (Ex. A, p. 1) His duties included doing concrete finish work at the Mercy Surgical Clinic jobsite. Concrete work involves setting grade, building needed wet concrete forms, monitoring and controlling the chute from which the wet concrete pours from the delivery truck, as well as leveling and smoothing the concrete. Shovels are used for leveling; smoothing or trowelling is done on hands and knees.

On the date of injury, October 30, 2007, claimant had been working as a union carpenter for defendant employer Miron Construction for about one week. (Tr., pp. 38-39) He was hired for a project that involved construction of a new outpatient building for Mercy Hospital in Iowa City. (Tr., pp. 54-55) Claimant worked building forms, setting grade and pouring concrete footings for the foundation of the building. (Tr., pp. 16-17) He testified that when pouring the concrete foundation he would spend time on his hands and knees smoothing the concrete with a trowel. (See Tr., p. 19) He alleges that while at work on October 30, 2007 he began experiencing pain in his left knee, and that by the end of the day the knee had become visibly swollen. (Tr., pp. 19-20)

Claimant testified he continued to work throughout the 7:00 a.m. to 4:00 p.m. workday, and then reported his knee problem to the project superintendent, Scott Seligman. The project superintendent's responsibilities include completing the daily project logs. On October 31, 2007, Mr. Seligman recorded:

Chris Poula mentioned his knee was really bothering him. He said it was an existing condition and he was going to have it checked out next week. He said he was not going to try to claim it as workers (sic) Comp (sic). It was an existing problem and he was claiming it on his personal insurance. I told him if it was an issue he should [be] taking a layoff. But he said it was okay to work and he would not claim a workers (sic) comp claim.

(Ex. A, p. 4)

Claimant did present at Iowa City Family Practice on November 7, 2007. The handwritten office note of that date records claimant's weight as 280 pounds and states:

cc: (R) knee pain - also (L) knee. Did lots of sports in HS - Has had knee trouble for years. Does carpentry work - Has a lot of work on knees. Swollen and tender… (Insurance till end of December) off three months... (L) knee

(Ex. I, p. 128)

After the written notation, a typed SOAP treatment notation follows:

S: A 41-year-old presents with right knee pain (sic) did a lot of sports in High School and has had problems with it since. Does carpentry work, which kind of bothers it as well. If there are any surgical procedures, his insurance apparently runs out at the end of the year.

O: Vital signs are as noted. Left knee exam, it is pretty swollen. No obvious ligamentous laxity. Anterior and posterior draw testing is negative. Lachman’s negative. McMurray's questionable because of diminished range of motion. Right knee also within similar exam (sic) a little bit of tenderness overall, but ligamentous exam is within normal limits.

A: Chronic knee pain. Concerns for a surgical problem.

P: I am going to send him right to ortho just to get things rolling, sooner rather than later. I would rather [if] they do need to do anything to kind of get going. Follow-up per their recommendations.

(Ex. I, p. 128)

The November 20, 2007 daily report log records that claimant was not at work that day. He had called "and said his knee was swelled and would not be in." (Ex. A, p. 6)

The Wednesday, December 5, 2007 daily log contains the following notation:

Chris Poula asked me if he could be laid off on Friday so he could get work done on his knee next week. I said I could do that. I asked him one last time if this was a work related issue on his knee. He said it was an existing condition and that it was nothing to do with working for Miron (sic) it just was time to do something with because it was bothering him to

do anything. He said it was not a comp claim on us and that he was going to use his carpenters insurance because it was an existing condition when he started here.

(Ex. A, p. 12)

Claimant sought medical help for his knee at Iowa City Family Practice and eventually was sent to Michael Durkee, M.D. at Steindler Orthopaedic for further evaluation. (Tr., p. 26) An MRI was completed of the left knee on November 15, 2007 and revealed degeneration of the meniscus as well as moderately severe irregularity of the articular cartilage of the medial femoral condyle. (Ex. I, p. 147) For treatment of his pain it was recommended that claimant have the knee aspirated and injected.

During this time claimant continued to hunt and play pool as the captain of his pool league. (Ex. I, p. 147) However, as his complaints and symptoms did not improve, on December 5, 2007 claimant requested to be laid-off from his job at Miron, and on December 7 he was released from employment. (Tr., pp. 78-79, See also Ex. A. p. 12) On December 11, 2007, claimant underwent surgery to repair his medial meniscus tear. (Exhibit 1, p. 9)

Following the surgery, on December 19, 2007 claimant was admitted to Mercy Hospital with severe chest pains and was diagnosed with multiple bilateral pulmonary emboli. He was continued on anticoagulation medication for several months. (Ex. 1, p. 10) The examining doctor, Ray F. Miller, M.D., MPH opined to a reasonable degree of medical probability that, “Medically there is a direct relationship and a substantial contributing factor of the left knee surgery to the development of the bilateral pulmonary emboli.” (Ex. 1, p. 18) There is no dispute that claimant’s knee surgery was a substantial contributing factor in bringing about the bilateral pulmonary emboli for which he was hospitalized. (Ex. 7, p. 15)

Several medical opinions are in the record regarding the question of whether claimant's work activities for the employer lighted up or materially aggravated his left and right knee arthritis.

After examining claimant on October 23, 2008, Dr. Miller diagnosed claimant with diffuse mild osteoarthritis of the right knee and with advanced degenerative arthritis in all three compartments of the left knee. During his evaluation, Dr. Miller recorded claimant’s complaints as follows:

Mr. Poula complains of considerable pain in his left knee. He describes that it is constant and aggravated by activity. He states that he frequently sits in his recliner with his legs elevated. When he is up for a period of time he describes swelling that occurs in the left leg, ankle, and foot.

(Ex 1, p. 11)

He also noted that because of his pain, claimant’s uninterrupted sleep is limited to only two or three hours at a time. (Ex. 1, p. 11) Regarding physical limitations, Dr. Miller opined:

He needs to avoid squatting, kneeling, walking on uneven surfaces, and needs to limit weightbearing to the extent that it is tolerated… He should avoid any significant lift and carry.

(Ex. 1, p. 14)

Dr. Miller’s opinions regarding claimant's alleged knee injuries are many; all causally relate claimant's bilateral knee complaints and symptoms to work for the employer or other construction work claimant performed having substantially lighted up or aggravated claimant's pre-existing bilateral knee osteoarthritis, with the aggravation injury manifesting on October 30, 2007. (Ex. 1, pp. 1-27) Dr. Miller also has opined that claimant's knee condition has produced significant low back pain. (Ex. 1, p. 25)

After an October 23, 2008 Independent Medical Evaluation (IME) Dr. Miller stated:

Mr. Poula’s development of osteoarthritis of the left knee is related to his size, potentially to heredity concerns, but significantly contributed to by Mr. Poula’s work in construction for the previous 24 years. Mr. Poula had short periods of time when he was working at Miron Construction, but that work for Miron Construction, in and of itself, I do not feel would have been a substantial contributing factor to the amount of arthritis found in Mr. Poula’s left knee.

(Ex. 1, p. 12)

Dr. Miller further stated; “It is my opinion that Mr. Poula’s occupational demands of construction work over the last 24 years was a significant contributing factor to the aggravation and progression of the degenerative arthritis in the left knee.” (Ex 1 p. 13) In a follow-up letter dated June 9, 2009, Dr. Miller agreed “the day to day work Mr. Poula performed for Miron Construction was the type of occupational demands of construction work [he was] referring to in [his] response.” (Ex 1, p. 27) And further; “the current complaints and symptoms of the left knee outlined by Mr. Poula started after the injury of 10/30/2007 and are the result of an aggravation of a preexisting osteoarthritis of the left knee.” (Ex 1, p. 13)

On February 28, 2008, Dr. Durkee checked "yes" that claimant's work as a construction worker was a substantial contributing factor in bringing about the need for the left knee treatment and surgery. This check is in a February 25, 2008, opinion request letter from claimant's attorney. Dr. Durkee provides no independent rationale for the opinion. (Ex. 3, pp. 1-2)

Dr. Durkee had earlier stated:

The patient states his injury happened at work. The meniscal tear may be related to that; however, I would suspect it is going to be difficult to attribute all of his arthritic changes to a work injury.

(Ex. I, p. 126) (Emphasis added)

Claimant’s family practitioner, Thomas A. Novak, M.D. of West Branch Family Practice Clinic similarly stated that, “Based on my experience that injury Mr. Pula (sic) sustained to his left knee would have constituted substantial contributing factor to the severity of arthritis in the left knee. Additionally, the work performed as carpenter with repetitive bending, lifting, kneeling, squatting, etc. would be a substantial contributing factor to the development and severity of arthritis in his knees as well.” (Ex. 5, p. 10)

On June 12, 2008, Abdul Foad, M.D. of Foad Orthopaedic Surgery and Sports Medicine, P.C., performed an IME. (See Ex. I, p. 130) When claimant did not appear for the independent medical evaluation defendants twice had arranged with Dr. Foad, the doctor performed a medical record review and issued opinions regarding the sources of claimant's knee osteoarthritis. Dr. Foad opined that claimant’s meniscal tear could result from his work activities although his underlying left knee osteoarthritis did not. This orthopedic surgeon reasoned that osteoarthritis is most likely a genetically heterogeneous disease process where local factors, such as excessive loading, act within the context of genetically predisposed systemic susceptibility. He stated that intrinsic factors, such as genetic predisposition, obesity, higher bone density, and overall knee alignment likely combine with extrinsic factors such as past trauma and/or excessive kneeling and squatting for many continuous years to create osteoarthritis like that in claimant's left knee. Dr. Foad noted claimant's history of knee pain in high school onward; additionally, the doctor stated that claimant had not worked continuously for years as a carpenter for Miron. (Ex. I, p. 131)

Dr. Foad agreed that claimant has right knee mild osteoarthritis, but stated that working for Miron had not caused or materially aggravated that condition. The doctor also stated that any right knee pain claimant experienced from favoring the left knee, at worst, was a temporary aggravation of his pre-existing right knee osteoarthritis. (Ex. I, p. 135)

Dr. Foad agreed with Dr. Miller that under the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, claimant’s left knee partial meniscus tear is rated as two percent permanent impairment to the lower extremity. (Ex. 1, p. 13; Ex. I, p. 131)

Dr. Foad also noted:

However, this gentleman had a history of knee pain stemming back to his high school years. He also, […] has not worked continuously for years as a carpenter for Miron Construction […] Intrinsic factors (such as genetic predisposition, obesity, higher bone density, and overall knee alignment) and extrinsic factors (such as past trauma, excessive kneeling or squatting for many continuous years) combined will create such a picture that was presented by Mr. Poula and eventually cause an alteration of the intracellular or mechanical environment.

Although the osteoarthritis is not, within a reasonable degree of medical probably, a direct cause of his work activities, the meniscal tear can be. Based on the medical records provided for me, I believe this gentleman has reached maximum medical improvement. According to the AMA Guides of Permanent Impairment, 5th Edition, Mr. Poula would have a 2 (two) percent impairment to the lower extremity or a 1 (one) percent impairment to the whole person.

Since Mr. Poula has not been working as a carpenter for Miron Construction since 12/2007, I would not relate any present knee pain directly to his work place, but more likely to intrinsic factors as mentioned above. […]

(Ex. I, p.131) (Emphasis added)

Because Mr. Poula’s work injury was not a substantial contributing factor to his left knee osteoarthritis based on it being a genetically heterogeneous disease, working as a construction worker for 24 years, and the short period of time Mr. Poula had been working for Miron Construction, I would not determine impairment by evaluation of his pre-existing arthritis.

(Ex. I, pp. 131-136) (Emphasis added)

Claimant asserts that his left knee meniscus tear and the overall aggravation of the bilateral knee osteoarthritis have also resulted in his developing a debilitating mental depressive disorder.

Psychiatrist, Alan C. Whitters, M.D., to whom claimant was directed by his attorney, has diagnosed claimant with major depressive disorder, recurrent-moderate, and has opined that claimant's work injury was a substantial contributing factor in producing that condition, as claimant has ongoing psycho-social stressors of chronic pain and loss of employment that claimant relates to the work injury. Dr. Whitters further opined that claimant had marked mental impairment that will impede his functioning as to activities of daily living, social [interaction], [cognitive] concentration and in other ways. Dr. Whitters believed a psychological evaluation might benefit claimant. Dr. Whitters expressed his belief that so long as claimant's psycho-social stressors and pain remain, his depression will not remit and he will be wholly disabled from work. (Ex. 2, pp. 13, 15, 23-24) He stated “I do believe the work injury of October 30, 2007 was a substantial contributing factor in bringing about Mr. Poula’s mental condition.” (Ex. 2, p.13)

On December 11, 2008, Dr. Whitters diagnosed claimant with “Major Depressive Disorder, recurrent-moderate (296.32).” (Ex. 2, p. 15) Dr. Whitters opined, “Mr. Poula’s knee injury with ongoing pain and degeneration would be considered to be a factor in exacerbating depression and overall stress. Moreover the inability to be employed and having the loss of income would also qualify as factors.” (Ex. 2, p. 23) Dr. Whitters further stated that, “Obviously if knee pain and other associated conditions are permanent, depression is likely to remain although it is possible to have severe pain and not be depressed.” Dr. Whitters went on to state that he found Mr. Poula “credible and generally compliant with requested treatment.” (Ex. 2, p. 23) He found that Mr. Poula met the criteria for Major Depressive Disorder, recurrent-moderate (296.32) as specified by DSMIV criteria. (Ex. 2, p. 24)

Claimant’s family physician, Dr. Novak also noted:

Mr. Pula (sic) is depressed. During course of treating Mr. Pula (sic) over the past 18 months, he has shown increasing signs and symptoms of depression including decreased moods, decreased energy level, feelings of hopelessness, lack of enjoyment of activities, decreased interest in activities, social withdrawal, and poor sleep pattern. The substantial majority of these symptoms have developed because of Mr. Pula’s (sic) inability to be physically activity (sic) and maintain the type of mental and physical activities he engaged in previously as a carpenter and in his free time. Because of his physical disability following the injury, he is no longer able to engage in activities that provide better psychological balance for him.”

(Ex. 5, p. 10)

John Brooke, PhD, of Psychological Services, Inc. was retained by the defense to perform an independent psychological examination on January 9, 2009. His examination was based on interviews with claimant and records. Dr. Brooke recommended psychological testing, but claimant declined. After expressly interviewing claimant as to the DSM-IV criteria for major depressive episode, Dr. Brooke opined that claimant did not suffer from major depression. Dr. Brooke opined that claimant likely did have a pain disorder associated with both psychological factors and a general medical condition that is part of his personality and long-standing and likely was active when he had his back injury. Dr. Brooke opined that claimant was at maximum medical improvement from a psychological perspective, had no work restrictions due to psychological impairment, and would not benefit from psychiatric and psychological treatment. (Ex. I, pp. 138-139 & 143-144)

Dr. Brooke stated:

I do not think Mr. Poula is suffering from major depression but does present with a Pain Disorder which is associated with his reported injury and personality characteristics. The Pain Disorder was not caused by his reported injury but has significantly complicated his recovery. He is considered to be at MMI from a psychological perspective, there are no work restrictions or impairments, and I do not think any further psychological/psychiatric treatment will benefit Mr. Poula.

(Ex. I, p. 138)

The stipulations of the parties contained within the hearing report filed at the time of hearing are accepted and incorporated into this decision by reference to that report. Pursuant to those stipulations, claimant was single and entitled to one exemption on the date of injury. Gross weekly earnings were $920.00, which results in a weekly compensation rate of $539.00.

CONCLUSIONS OF LAW

The first issue in this case is whether claimant has carried his burden of proof to show a work injury.

The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 6.14(6).

The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997); Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); Sanchez v. Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996).

The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Supportive lay testimony may be used to buttress the expert testimony and, therefore, is also relevant and material to the causation question. The weight to be given to an expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts the expert relied upon as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); IBP, Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994).

A personal injury contemplated by the workers’ compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something that acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. Increased disability from a prior injury, even if brought about by further work, does not constitute a new injury, however. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995); McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(4) (b); Iowa Code section 85A.8; Iowa Code section 85A.14.

When the injury develops gradually over time, the cumulative injury rule applies. The date of injury for cumulative injury purposes is the date on which the disability manifests. Manifestation is best characterized as that date on which both the fact of injury and the causal relationship of the injury to the claimant’s employment would be plainly apparent to a reasonable person. The date of manifestation inherently is a fact based determination. The fact-finder is entitled to substantial latitude in making this determination and may consider a variety of factors, none of which is necessarily dispositive in establishing a manifestation date. Among others, the factors may include missing work when the condition prevents performing the job, or receiving significant medical care for the condition. For time limitation purposes, the discovery rule then becomes pertinent so the statute of limitations does not begin to run until the employee, as a reasonable person, knows or should know, that the cumulative injury condition is serious enough to have a permanent, adverse impact on his or her employment. Herrera v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001); Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992); McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).

While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).

A treating physician’s testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given to the testimony of physician is a fact issue the workers’ compensation commissioner decides in light of the record the parties develop. In this regard, both parties may develop facts as to the physician’s employment in connection with litigation, if so; the physician’s examination at a later date and not when the injuries were fresh; his arrangement as to compensation, the extent and nature of the physician’s examination; the physician’s education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician’s testimony. Both parties may bring all this information to the attention of the fact finder as either supporting or weakening the physician’s testimony and opinion. All factors go to the value of the physician’s testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).

Defendants admit claimant’s left posterior horn medical meniscus tear arose out of and in the course of employment with defendant Miron Construction. (Ex. 7, p.5) Claimant’s surgery on December 11, 2007, resulted in a bilateral pulmonary emboli and further hospitalization. Defendants have also admitted this. (Ex. 7, p. 15)

The parties agree that claimant has a left medial meniscus tear that is a work injury sustained on October 31, 2007, for which orthopedic surgeon, Michael M. Durkee, M.D., performed an arthroscopic partial medial meniscectomy on December 11, 2007. (Ex 4, p. 1) Defendants stipulate to a traumatic injury but dispute a cumulative injury, as claimant only worked for defendants a short time before he was injured.

Subsequent to his surgical procedure claimant developed deep vein thrombosis and a pulmonary embolism, body as a whole conditions related to the surgical treatment of the meniscus tear. (Ex. 5, p.1; Ex. 1, p. 18) Claimant does not claim and no record evidence supports that those conditions have produced permanent disability, however.

Claimant does claim that (1) he sustained a cumulative trauma injury to his bilateral knees on October 30, 2007 by way of aggravation of his pre-existing bilateral knee osteoarthritis; (2) alterations in his gait as a result of his knee arthritis aggravated his pre-existing low back problems; and (3) his knee pain and lack of mobility have produced debilitating depressive disorder. Defendants dispute those claims.

Defendants deny that claimant has suffered a cumulative injury, but admit a traumatic work injury. Presumably defendants admit responsibility for the disability caused by the meniscal tear, but deny responsibility for any prior bilateral knee arthritis.

However, if a traumatic work injury with this employer has aggravated a preexisting arthritic condition as well as causing a meniscal tear, defendant employer will be responsible for the entire disability caused by that aggravation, whether by a traumatic event or by a cumulative injury process.

Claimant clearly had a pre-existing bilateral knee condition. Whether it was due to a sports injury in high school, which claimant denies but which medical records note, or due to 24 years of working in the construction trade, which is far more likely, he clearly told his supervisor he had ongoing knee problems and he at first attributed his knee pain on the date of injury to that. Later medical opinions suggest his pre-existing knee condition was aggravated by his work, manifesting on the date of injury when he experienced severe pain and swelling. The fact claimant originally attributed his knee pain to his prior condition without attributing it to his work injury with Miron is not binding on him. Claimant is not expected to be familiar with the workers’ compensation concept of an aggravation injury. As shown below, it is clear many of his doctors also are not familiar with that concept.

Dr. Miller felt claimant’s ongoing work in the construction industry led to an aggravation of his degenerative left knee arthritis. (Ex. 1, p. 13; Ex. 1, p.27)

Thomas Novak, M.D., claimant’s personal physician, also concluded claimant’s work aggravated his arthritis in his left knee. (Ex. 5, p.10)

Dr. Durkee, who performed the surgery, also felt claimant’s work caused his knee condition. However, he could not attribute all of claimant’s current knee condition to his work for Miron Construction, as shown by the emphasized portion of his report in the findings of fact, above.

But that is not the legal standard claimant must meet. If a traumatic event caused a permanent aggravation of a prior cumulative knee condition while working for this employer, the employer is responsible for any resulting disability, whether claimant worked there for one week, one day or one hour.

Dr. Foad concluded claimant’s work for this employer did not cause his knee condition. However, Dr. Foad did acknowledge claimant’s 24 years of work in the construction field was a likely cause of his condition. In the emphasized portions of his reports in the findings of facts, above, Dr. Foad clearly thinks he cannot causally connect claimant’s current knee conditions to his work for Miron Construction because claimant only worked there a short time, and claimant’s arthritic conditioned developed over his 24 years of working in construction and pre-existed this work injury. Again, Dr. Foad applies a non-legal standard. Claimant is not required to show his work for this employer caused his underlying knee condition. He is only required to show that his work for this employer aggravated that underlying knee condition and resulted in permanent disability.

Claimant worked in the construction and carpentry fields for over 24 years. He developed bilateral knee osteoarthritis, which was somewhat symptomatic, but claimant was nevertheless able to work in that field for many years. However, his work for this employer resulted in an incident on October 30, 2007, that resulted in a tear of his left meniscus. That injury in turn aggravated and lighted up claimant’s bilateral osteoarthritis and made it symptomatic. The opinions of Dr. Novak and Dr. Durkee suggest that the type of work which claimant engaged in while at work with Miron would have constituted a substantial factor to aggravating claimant’s degenerative condition.

Even Miron’s expert, Dr. Foad, confirms that claimant’s many years of work in the construction trade has caused his underlying bilateral knee arthritis, although Dr. Foad declines to attribute the aggravation of that condition to claimant’s work for Miron, apparently because of the short time he worked there. As a medical doctor, Dr. Foad is understandably not well versed in the concept of a traumatic incident aggravating a pre-existing cumulative condition.

Based on the testimony and the medical evidence, it is found that claimant’s work for Miron Construction on October 30, 2007, aggravated a pre-existing bilateral knee arthritic condition. The work claimant did that day resulted in an aggravation of his pre-existing, and for the most part previously asymptomatic and non-disabling, condition in a sudden and disabling manner, causing him to have to undergo surgery for the condition. His injury on October 30, 2007, set into motion a series of symptoms that necessitated a surgical procedure, lost time from work, and permanent impairment, involving not only the mensical tear but also an aggravation of the underlying bilateral arthritis in both knees.

It is found claimant has carried his burden of proof to show that he suffered an injury arising out of and in the course of his employment on October 30, 2007 in the form of a traumatic mensical tear and an aggravation of a pre-existing bilateral arthritic condition.

Claimant further asserts that his depression is a sequela of the residuals of his physical injury. The medical evidence in the record from mental health specialists are contained in the reports of Dr. Whitters (treating psychiatrist), Dr. Novak (family practitioner), and Dr. Brookes (Defendant’s independent medical examiner). Both Dr. Whitters and Dr. Novak maintain that claimant is clinically depressed and will remain thus for such time as he is physically disabled. They aver that his clinical depression finds its root cause in the workplace injury and disabling effects.

Alternatively, Dr. Brookes avers that claimant is not suffering from major depression, but does present with a Pain Disorder which is associated with his reported injury and personality characteristics. (Ex. I, p. 131) In his report, Dr. Brookes stated that the Pain Disorder was not caused by claimant’s injury but has significantly complicated claimant’s recovery. (Ex. I, pp. 131-136)

Dr. Brooke is a psychologist. Dr. Whitters is a psychiatrist. Although this difference in credentials is not determinative, it is relevant. In addition, Dr. Whitters’ opinion corroborates claimant’s description of his symptoms. Dr. Brooke’s opinion that claimant has no serious mental disorder seriously conflicts with that description.

Claimant’s description of his ongoing symptoms is somewhat dependent on his credibility. The deputy hearing this case was less than impressed by his credibility. Although a deputy’s observations as to demeanor are important to a determination of credibility, the record made at the hearing, although showing some discrepancies in claimant’s testimony, was not such that his testimony was required to be rejected in total. Some of those discrepancies are explained by claimant’s explanation that his tax records reflect only part of his work over the past 24 years.

The fact that claimant has been less than cooperative in his treatment is also troubling. He failed to appear for an independent medical examination. He refused psychological testing requested by Dr. Brooke. He terminated vocational rehabilitation services. This conduct on his part does not speak well for his motivation, but nevertheless does not justify a total rejection of his testimony.

Claimant’s description of his mental condition was accepted by Dr. Whitters, who no doubt is trained not only to diagnose mental conditions, but to discern when a mental condition is not present as well, or is being feigned. Dr. Novak, who is very familiar with claimant and his medical history, also felt claimant was suffering from severe depression. The opinions of Dr. Novak and Dr. Whitters will be given greater weight than that of Dr. Brooke, who saw claimant less, and who has a less advanced degree than Dr. Witters, and whose opinion is contrary to the testimony of claimant. It is found claimant suffers a major depressive disorder, substantially caused by his work injury.

The next issue is the extent of claimant’s disability as a result of his work injury.

Claimant has established that his work injury has resulted in a psychological condition as well as a torn meniscus, and an aggravation of his bilateral osteoarthritis of his knees, and back pain and an altered gait. Therefore his injury is to the body as a whole.

Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man."

Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).

Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34.

Claimant is 43 years old. His education consists of college work in engineering. He has worked as a paralegal. But most of his working life has been in manual labor, in the construction and carpentry fields.

As a result of his work injury, he has a two percent impairment of his left leg. He continues to suffer swelling in his ankle, foot, and leg. He has work restrictions of avoiding squatting, kneeling, walking on uneven surfaces, and he is to limit weight bearing or lifting or carrying to his tolerance. Ex. 1, p.14. His pain causes him sleep disruption. He had to undergo surgery for his knee condition. His prior back condition has also become symptomatic as a result of his injury, including an altered gait.

Dr. Novak has opined that claimant is not capable of full competitive employment at this time. (Ex. 2, p. 24) Dr. Whitters, the psychiatrist, has also concluded that claimant’s work injury, with its chronic pain, and loss of employment, have produced stressors that have substantially caused, and will continue to cause, a major depressive disorder. He also feels claimant is completely unable to work due to his major depressive disorder. (Ex. 2, p. 13; Ex. 2, p. 23)

Claimant seeks an award of permanent total disability.

Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence, and physical capacities would otherwise permit the employee to perform. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W.2d 899 (1935).

A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 29, 1987); Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App. 1982).

In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the “odd-lot doctrine.” Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are “so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.” Id., at 105.

Under the odd-lot doctrine, the burden of persuasion on the issue of industrial disability always remains with the worker. Nevertheless, when a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence showing availability of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of facts finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at 106. Factors to be considered in determining whether a worker is an odd-lot employee include the worker’s reasonable but unsuccessful effort to find steady employment, vocational or other expert evidence demonstrating suitable work is not available for the worker, the extent of the worker’s physical impairment, intelligence, education, age, training, and potential for retraining. No factor is necessarily dispositive on the issue. Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258 (Iowa 1995). Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of evidence in determining whether the worker’s burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong as to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106.

In addition to his physical problems from his injury, which include a rating of permanent impairment, work restrictions, and ongoing pain in his knees and back, claimant has been diagnosed to have a permanent major depressive disorder caused by his work injury, felt to be permanent as long as his chronic pain persists. Dr. Novak felt claimant could not work due to joint pain, impairment of sleep and lack of concentration and mental focus. Dr. Whitters also feels claimant is unable to work.

The greater weight of the medical evidence indicates claimant is not currently able to work. If his leg pain subsides in the future, that may change, but the evidence in the record shows claimant’s chronic pain makes him unable to focus enough to work. Combined with his physical work restrictions, he is unable to return to the work he did when injured, the kind of work he has done most of his life, or any other jobs for which he might reasonably be suited.

It is not necessary to find claimant to be an odd lot employee. In this case, the medical record, especially the opinion of the psychiatrist, Dr. Whitters, clearly establishes he is not able to perform any job. He is permanently and totally disabled under traditional criteria. It is found claimant, as a result of his work injury, is permanently and totally disabled.

Claimant also seeks an award of penalty benefits for defendants failing to voluntarily pay permanent partial disability benefits beyond the rating of two percent of the leg.

If weekly compensation benefits are not fully paid when due, section 86.13 requires that additional benefits be awarded unless the employer shows reasonable cause or excuse for the delay or denial. Robbennolt v. Snap-on Tools Corp., 555 N.W.2d 229 (Iowa 1996).

Delay attributable to the time required to perform a reasonable investigation is not unreasonable. Kiesecker v. Webster City Meats, Inc., 528 N.W.2d 109 (Iowa 1995).

It also is not unreasonable to deny a claim when a good faith issue of law or fact makes the employer’s liability fairly debatable. An issue of law is fairly debatable if viable arguments exist in favor of each party. Covia v. Robinson, 507 N.W.2d 411 (Iowa 1993). An issue of fact is fairly debatable if substantial evidence exists which would support a finding favorable to the employer. Gilbert v. USF Holland, Inc., 637 N.W.2d 194 (Iowa 2001).

An employer’s bare assertion that a claim is fairly debatable is insufficient to avoid imposition of a penalty. The employer must assert facts upon which the commissioner could reasonably find that the claim was “fairly debatable.” Meyers v. Holiday Express Corp., 557 N.W.2d 502 (Iowa 1996).

The employer’s failure to communicate the reason for the delay or denial to the employee contemporaneously with the delay or denial is not an independent ground for imposition of a penalty, however. Keystone Nursing Care Center v. Craddock, 705 N.W.2d 299 (Iowa 2005)

If the employer fails to show reasonable cause or excuse for the delay or denial, the commission shall impose a penalty in an amount up to 50 percent of the amount unreasonably delayed or denied. Christensen v. Snap-on Tools Corp., 554 N.W.2d 254 (Iowa 1996). The factors to be considered in determining the amount of the penalty include the length of the delay, the number of delays, the information available to the employer and the employer’s past record of penalties. Robbennolt, 555 N.W.2d at 238.

The record at hearing showed that Dr. Foad had issued an opinion that claimant’s current knee condition was not caused by his work for defendant employer. Dr. Brooke had issued an opinion that claimant’s depression was not caused by his work. Although those opinions have not been adopted in this decision, defendants were entitled to rely on them. It is found the issues of causal connection, permanent disability and the extent of disability were fairly debatable. Penalty benefits are not appropriate.

ORDER

Therefore it is ordered:

Defendants shall pay unto the claimant permanent total disability benefits at the rate of five hundred thirty-nine and 50/100 dollars ($539.50) per week from March 5, 2008.

Defendants shall pay accrued weekly benefits in a lump sum.

Defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30.

Defendants shall be given credit for benefits previously paid.

Defendants shall pay the claimant’s prior medical expenses submitted by claimant at the hearing.

Defendants shall pay the future medical expenses of the claimant necessitated by the work injury.

Defendants shall file subsequent reports of injury as required by this agency pursuant to rule 876 IAC 3.1(2).

Costs are taxed to defendants.

Signed and filed this 13th day of January, 2011.

Copies to:

Thomas M. Wertz

Attorney at Law

PO Box 849

Cedar Rapids, IA 52406-0849

twertz@

Andrew D. Hall

Jessice L. Cleereman

Attorneys at Law

PO Box 10434

Des Moines, IA 50306

ahall@

jcleereman@

JEH/blr

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JON E. HEITLAND

DEPUTY WORKERS’

COMPENSATION COMMISSIONER

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